On January 6, Federal Judge Robert Mariani, U.S. District Court for the Middle District of Pennsylvania, denied summary motions to dismiss the Wayne Land & Mineral Group v. Delaware River Basin Commission and intervenor Delaware Riverkeeper Network.

The lawsuit by Wayne County landowners challenges DRBC's 2010 shale gas drilling moratorium.

The Judge made it clear in denying the summary judgment motions he was not taking a position on a fundamental element of the dispute.

“The Court does not decide that a discrete aspect of a planned natural gas development undertaking could not be considered a “project” reviewable under § 3.8 of the Compact.  The Court simply finds that such a determination is not appropriate on summary judgment.”

Maya van Rossum, the Delaware Riverkeeper, issued this statement in response to the ruling--

“While we would certainly have preferred that this case be decided on the summary judgement motions of the Delaware Riverkeeper Network and the Delaware River Basin Commission, we are not surprised that Judge Mariani declined to do so. 

"The presentation of the law at issue is complicated.  The science and facts regarding the devastating impacts of shale gas extraction are voluminous. 

"And that WLMG was unwilling to admit to any of the demonstrable truths and impacts of shale gas extraction at issue here, and their strenuous efforts to dispute every reality postured by DRBC and the Delaware Riverkeeper Network, made it pretty impossible for the Judge to issue a summary judgement ruling. 

"But we are confident that when we are given our full day in court, both through briefings and detailed oral argument, that the legal authority, right and obligation of the DRBC to fully regulate all aspects of fracking, including prohibitions, will be upheld by the courts.”

Background

The Delaware River Basin Commission has had a temporary ban on natural gas fracking in the watershed since 2010 while it develops regulations on the process.

DRBC proposed a permanent ban on this one process for developing Shale gas in November, 2017 for public review.  In its last public statement on the proposal in April 2018, the Commission said it had no timetable for finalizing the fracking ban.  Read more here.

The Wayne Land and Mineral Group, a group of landowners in Wayne County, Pennsylvania, want to allow fracking in the River Basin. They have sued the DRBC, claiming it lacks authority to regulate this dangerous industrial activity.

In 2017, a federal court threw out a similar landowner challenge to DRBC’s authority, but the case was revived on appeal by the landowners in 2018.

Republican members of the  Pennsylvania Senate and House have sought to intervene in the challenge supporting the Wayne County landowners in two ways.

Senate Joe Scarnati (R-Jefferson), President Pro Tempore of the Senate, Gene Yaw (R-Lycoming), Majority Chair of the Senate Environmental Resources and Energy Committee, and Lisa Baker (R-Luzerne) requested for a second time to intervene directly in the federal court case, a highly unusual move.

They withdrew their second attempt to intervene in July of last year.  Read more here.

Their initial attempts were turned down by the Court, but they appealed the 2019 ruling.  Read more here. 

Republicans in both the Senate and House have introduced legislation that unilaterally declares a fracking ban a taking of property and would require the Delaware River Basin Commission to directly compensate landowners for their loss of property value if a permanent fracking ban is enacted by the Commission.

At a House Committee hearing in March of 2019, supporters of this legislation said the bill would require DRBC to pay landowners up to $10 billion, a significant portion of which would have to be paid by Pennsylvania taxpayers since the state is part of the DRBC.

A suggestion was made to put a fee on each household to pay the Wayne County landowners for their lost property value at another House hearing.  Read more here.

Senate Bill 305 (Baker-R-Luzerne) was reported out of the Senate Environmental Resources and Energy Committee in June of last year and was left in the Senate Appropriations Committee and the end of session last year.

House Bill 827 (Fritz-R-Wayne) was left on the House Calendar without action at the end of session after being reported out of the House Environmental Resources and Energy Committee in May of 2019.

Both bills are expected to be reintroduced again this session.

For more information on proposed natural gas fracking moratorium, visit DRBC’s Natural Gas Drilling webpage.

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[Posted: January 7, 2021]

1/11/2021